Five members of the Colorado Springs City Council want another opinion — one that will match their own and allow them to waste money. They are willing to spend some serious cash to get the opinion. When they prevail in their quest, Colorado Springs will have two conflicting opinions and a legal battle that will pit the City Council against the city attorney. Gee, thanks.
Council members object to their own city attorney’s advice, which says that in some circumstances they cannot force the mayor to spend money simply because they have put an expense in the budget. City Attorney Chris Melcher concluded that our mayor has some authority to impound funds.
Most government executives have broad authority to impound funds. The governor of Colorado, in fact, is required to impound funds in some circumstances in order to maintain a balanced budget. A mayor may need to impound funds if, say, a wild fire or some other crisis puts an unexpected demand on city funds. He may want to hold off for a while on a new croquet course in order to pay for additional fire suppression.
The issue arose after Mayor Steve Bach vetoed a few frivolous expenditures that council members added to the budget as favors for constituents. To test the limits of their power, a supermajority on the council voted to override Bach’s vetoes in an urgent quest to give us tennis court repairs and such.
Melcher, who earned his juris doctorate from Yale, already sought outside counsel. He wrote his opinion after consulting with experts including Cole Finegan, the managing partner of Hogan Lovells’ Denver office. Finegan earned his juris doctorate from Georgetown and was named “Lawyer of the Decade” by Law Week Colorado. He worked as Denver city attorney and chief of staff to former Denver Mayor John Hickenlooper. He is former chief legal counsel and director of policy and initiatives for former Gov. Roy Romer. He is an expert among experts on the authority of government executives.
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After extensive communication with experts, Melcher wrote an opinion that explained a distinction between the allocation of funds and the execution of funds. He explained that a mayor has authority “to exercise certain discretion in the administration of appropriated funds. An effort by Council to appropriate funds with specific direction, even after an over-ride vote by Council of a mayor veto, must be carefully considered on a case-by-case basis so as to properly respect the different roles and responsibilities of both City Council and the Mayor. A legislative appropriation generally may not direct municipal functions and departments via specific legislation instruction, and thereby intrude into the executive and administrative sphere of responsibility, unless such action is considered a major legislative budget determination.”
It’s a reasonable opinion that respects each side. Yet council members Scott Hente, Jan Martin, Lisa Czelatdko, Val Snider and Brandy Williams want to splurge, with your money, on some other opinion that will bolster their cause.
Bach has never impounded funds. If council wants to waste money on tennis courts during precarious economic times, he’ll write the check. Bach wanted to know his options because one never knows what frivolities this council may choose to indulge. Their desire for an expensive new legal opinion — which will back them in wasting money — pretty much says it all.
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